JANUARY 2023 NEWSLETTER

Message from the Editor

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo
Lorenzo Pugliano CEO
Lpugliano@nsshire.com

EMPLOYMENT SCREENING NEWS

Woman Arrested for Allegedly Working as a Registered Nurse Without License, DHEC Investigating

Thirty-seven-year-old Alyssa Beth Steele has been accused of practicing medicine without a license at seven nursing and assisted living facilities. The Department of Health and Environmental Control (DHEC) is investigating the allegations and has revealed that Steele had no certifications, qualifications or training of a registered nurse at no time during her employment.

Gainesville Becomes First City in Florida to Apply ‘Fair Chance Hiring’ to Private Employers

Gainesville, Fla., has enacted a fair chance hiring ordinance that applies to private employers. Employers will no longer be permitted to ask questions about or run a criminal background check until after making an offer of employment. At that time, the offer can be rescinded, but advocates believe the move will expand the qualified candidate pool for businesses and allow individuals with criminal backgrounds a chance at regaining employment.

Show Me the Money! Pay Transparency Laws Gain Momentum Across the Country

Pay transparency laws have now passed or are pending in 12 states. The most recent pay transparency laws went into effect in New York City in early November, amending the city’s Human Rights Law to require job postings to include a salary range for the advertised job, promotion, or transfer opportunity. Employers should consider conducting a pay equity study, prepare management and human resources regarding pay transparency trends, and learn to embrace inevitable changes that are on the horizon.

Employers Beware: CCPA Amendments Increase Employment Data Obligations and Private Liability Exposure

Effective Jan. 1, 2023, California Consumer Privacy Act (CCPR) amendments to the California Consumer Privacy Act (CCPA) will come into effect. Of note, additional requirements will be placed on employers to respond to employee inquiries about the collection and processing of their personal information and provide employees with an enhanced notice of how employee personal information is handled. Amendments to the CCPA’s private clause of action also increase employer exposure by expanding the definition of personal information to include email addresses in combination with a password or security question.

What Privacy Issues Are on Deck for 2023? Here are Some of the Most Interesting Ones (Part One)

2022 was the year of privacy laws, with several being enacted across the state and on an international level. 2023 will be no different, with several state privacy laws expected to take effect, which will give state attorney generals stronger tools to protect the privacy of residents. Other things to note for the coming year include the heavy influence of the California Privacy Protection Agency (CPPA), the political shift in the House, and the Federal Trade Commission’s (FTC) “surveillance” rulemaking on “commercial surveillance and data security.”

No Junk Data: CFPB Advisory Opinion Fleshes Out ‘Maximum Possible Accuracy’ for Purposes of Deciding FCRA Violations

In late October, the Consumer Financial Protection Bureau (CFPB) issued an Advisory Opinion interpreting Section 607(b) of the Fair Credit Reporting Act (FCRA), one of many technical provisions imposing specific compliance obligations on consumer reporting agencies (CRAs). Specifically, the Advisory Opinion indicates that if a CRA or a company engaged in consumer reporting activities neglects to remove

logical inconsistencies from consumers’ credit reports, such a company will be deemed to have violated the FCRA’s mandate to build and carry out “reasonable procedures to assure maximum possible accuracy” of information pertaining to consumers whose credit information or personal attributes are being reported.

City of Atlanta Adds New Protection for Gender Expression and Prohibits Discrimination Based on Criminal History

The City of Atlanta has amended its existing anti-discrimination law to include protections based on both gender identity and the criminal history of job applicants and employees. Employers can still make adverse employment decisions based on criminal history status if the criminal history is “related to the position’s responsibilities” pursuant to four specific factors.

Court Issues Favorable Ruling for California Employers in Background Check Disclosure Case

Three key points have emerged after a Fifth Appellate District court issued a favorable ruling for California employers regarding the Fair Credit Reporting Act (FCRA) and employer background checks in Limon v. Circle K Stores, Inc. In the case, the plaintiff alleged the employer had a technical violation of the FCRA by including additional information in the background consent form. The Court ruled that a plaintiff must show an actual injury to pursue a FCRA claim. California employers must also comply with state and local background check requirements or face substantial penalties.

Equifax / Experian Corner Worker Verification Space, Would-Be Rivals Seek Probe

Shmulik Fishman, CEO and founder of Argyle, called on the Federal Trade Commission (FTC) to investigate “the anticompetitive and anti-consumer practices” of Equifax and Experian in a letter sent to FTC Chair Lina Khan. The letter points out that consumers often don’t know how their information will be used in the system and cannot correct inaccuracies that may ultimately prevent them from renting an apartment or obtaining a loan or a job. Fishman called the employer verification industry “fundamentally broken.”

Illinois Appellate Court Holds Data Retention Policies Required When Collecting Bio- metric Data

In late November, the Second District Appellate Court of Illinois reversed and remanded a grant of summary judgement in favor of the defendant for an alleged violated of the Illinois Biometric Information Privacy Act (BIPA). The plaintiff in Mora v. J&M Plating, Inc. claimed that J&M Plating had violated BIPA by collecting workers’ fingerprints without a proper data retention and destruction policy for biometric information.

Inflection Risk Solutions Incorrect Background Checks $4M Class Action Settlement

Although Inflection Risk Solutions has not admitted any wrongdoing, the company has agreed to pay $4 million to resolve claims that included inaccurate criminal record information on background checks. Two classes were involved in the case and will benefit from the settlement: the Deemed Misdemeanor Class and the Nationwide Inaccurate Offense Characterization Class.

Missouri Legalizes Marijuana: How Amendment 3 Could Change the Workplace

Missouri’s Constitutional Amendment 3, which decriminalizes the purchase, possession, and use of marijuana for recreational and personal purposes, was passed by voters on Election Day. The measure contains important provisions employers must grapple with pertaining to discrimination, enforcement of a drug-free workplace, background checks and regulated industries. Still uncertain is how legal recreational marijuana could impact the workplace.

New Jersey Employer Guidance Regarding Employee Cannabis Impairment at Work

Employers in New Jersey may still prohibit cannabis in the workplace, even though the

Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) legalized recreational use in the state for those 21 and older. They can also require random testing, testing as part of a pre-employment screening, or regular screening of current employees.

Simple Possession Pardons Can Complicate Employment Background Checks

A blanket pardon was issued in October to all citizens and lawful permanent residents convicted of simple possession of marijuana under the federal Controlled Substances Act. President Biden is urging governors to follow suit since possession of marijuana offenses typically fall under the jurisdictions of the states. Employers should review their policies on criminal record checks because the new laws could raise a number of legal concerns.

What Missouri Employers Need to Know About Marijuana Legalization

Employers in the state of Missouri can still restrict marijuana use or intoxication in the workplace, even with the passing of Missouri Amendment 3, which legalizes recreational marijuana and makes a significant number of changes to the state’s medical marijuana laws. Recreational marijuana can still be the basis of an adverse employment action, but employers are encouraged to continue testing to maintain a safe workplace. Employers should also consider updating their policies regarding background checks for marijuana-related offenses.

District of Columbia: Council Members Advance Legislation to Expunge

Tens of Thousands of Marijuana Convictions

Members of the District’s City Council have advanced amended legislation, the Second Chance Amendment Act of 2021, to the desk of Mayor Muriel Bowser.

Council members voted 13 to zero in favor of the measure, which calls for the automatic review and expungement of any convictions or citations specific to marijuana-related offenses that have subsequently been decriminalized or legalized. All expungements are required to be processed by January 1, 2025.

Illinois Appellate Court Holds Businesses Must Implement Biometric Retention and Destruction Policies Before Collecting Biometric Data

A company was found to be liable for failing to implement a written biometric data policy before possessing such data. Trinidad Mora was hired in July 2014 by J&M Plating, Inc. The employee filed a class action lawsuit against the company after his employment termination in 2021, alleging that it violated the Biometric Illinois Privacy Data by collecting employee’s biometric data without first providing notice, obtaining informed consent, or issuing a retention and destruction policy. Read more

MOTOR VECHICLE RECORDS

Motor Carrier Employers May Conduct Safety Performance History Investigations in FMCSA Clearinghouse as of January 6, 2023

Effective January 6, 2023, motor carrier employers subject to the regulations of the Federal Motor Carrier Safety Administration (FMCSA) may conduct part of the safety performance history investigation that is required for all driver applicants in the FMCCSA Clearinghouse. Employers were previously required to directly contact all U.S. Department of Transportation (DOT)-related employers that employed the driver-applicant in the past three years. Read more

IMMIGRATION STATUS & EVERIFY

E-Verify Issues Reminder To Employers And Program Administrators On Terminating User Accounts

E-Verify recently reminded employers and program administrators that an E-Verify user’s access “must be promptly terminated upon separation from your organization.” A good practice, E-Verify said, is to review and update existing users whenever staffing changes occur and also on a regular basis. Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding, E-Verify noted.

Program administrators are reminded that their accounts are associated with their employers: “If you are hired by a new employer, you will need to create a new account. You are prohibited from using your old employer’s account to create cases for a new employer.”

Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant.

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